When entering a new relationship after a failed marriage, many people wonder: Can I get married before my divorce is final? The short answer is that no, you cannot get married before your divorce is finalized. It is illegal in the United States to be married to more than one person at the same time. Violations of this law can result in both criminal and civil penalties.
However, civil law approaches this concept in a slightly different way than criminal law, so read ahead to find out what you can do in your specific case!
Marrying While Still Married: Bigamy
If a person is married, he or she must first have the marriage dissolved through death, annulment, or divorce before legally entering into a new marriage. A person might be prosecuted with bigamy if he or she fails to have the prior marriage dissolved before entering into a new marriage contract.
Bigamy occurs when you remarry without divorce. You would still commit bigamy even if you were unaware, that your spouse was still married to someone else. Sometimes, bigamy can be intentional, such as when a married person willfully enters into a second marriage with an individual.
It could also be unintentional, as in the case of a failed divorce that was never legally finalized. It is important to note that if you are married to two people and one or both of them are aware that you are engaging in bigamy, but do not take action to end the marriage, they are also legally liable.
What Happens If You Get Married Before Your Divorce Is Final
If you get married before divorce was final, you will be liable for bigamy. Each state in the United States has its own set of laws and penalties for bigamy, as every state has its own criminal code. Criminal penalties can include imprisonment for months or years, as well as fines ranging from hundreds to thousands of dollars.
For example, bigamy is considered a felony in Wisconsin, but a misdemeanor in California, where it is punishable by up to a year in prison and a fine of up to $10,000. A conviction for bigamy in Mississippi, instead, can result in the loss of a person’s medical license as well as disqualification from running for public office.
The states in which bigamy is a misdemeanor include:
- Hawaii – where it is a petty crime punished by 30 days in jail
- New Jersey
- Rhode Island
Bigamy or Not? Here Are the Defining Criteria
Most states require the prosecution to disprove each of the criteria that identify bigamy beyond a reasonable doubt. The prosecution must consider the following while presenting their case:
- They need to establish if the defendant was legally married to just one individual.
- The prosecution must prove that the first marriage was not formally dissolved or otherwise severed, as in the case of a long-missing person.
- The prosecution must additionally prove that the defendant entered into a second marriage at a time when the first was still active.
- Finally, the prosecution must show that the second marriage met all of the marriage’s basic elements.
If your spouse was aware of your previous marriage, they may face the same charges as you. Spouses who knowingly maintain a bigamous marriage, however, may face a slightly less severe penalty.
In most states, getting married while still married is considered “void.” A void marriage is one that was never legally recognized in the first place and thus qualifies for annulment. An annulment effectively dissolves a marriage and declares that it never existed in the first place.
What Are the Defenses of Getting Remarried Without Divorce?
Many bigamy defenses revolve around the prosecution’s inability to prove a required crime element of the offense. As a result, one common defense is that the defendant had no intention of marrying two people at the same time.
The following are a few defenses to bigamy:
- The whereabouts of a previous spouse have been unknown for an extended period and it is reasonable to believe they have died. This inference can be made if the other person has been missing or unavailable for seven years in most states and five years in others, on the condition that no one could say he or she is alive or dead.
- A good faith effort was made to file for divorce but the party representing your spouse did not follow through and file the paperwork.
- The second marriage was annulled. To annul a void marriage, you or your second spouse must petition the court for an annulment and prove one of the particular grounds that indicate your marriage is void. In the instance of bigamy, proof that your first marriage was lawful at the time of your second marriage would suffice. After annulling your second marriage, you are unlikely to face criminal penalties.
The Penalties for Bigamy in the United States
Committing bigamy in the United States is illegal in every state, and those who do so face both criminal and civil penalties. Because your second marriage is illegal, it is considered null and void because it cannot exist legally. Every state recognizes the right to annul a null and void marriage.
The penalty for bigamy, however, will vary state by state. However, the typical penalty for bigamy includes around 5 years in prison and a criminal fine. Examples from some states include:
- California: the defendant may face a fine of up to $10,000 or one year in jail. Further, the spouse of the bigamist may be charged $5,000 if they knew that the bigamist was married.
- Florida: Up to five years in jail and a $5,000 fine.
- Idaho: Three years in jail and a fine of $2,000.
- Massachusetts: Up to five years in state prison and a fine of $500.
- Michigan: The defendant may face up to a year in prison and a fine of up to $500.
- Minnesota: Five years in prison and a $10,000 fine.
- Montana: The defendant may face six months in prison, a $500 fine, or both.
- New Mexico: The defendant may face two to seven years in prison.
- New York: The defendant may face three to four years in prison.
- Oklahoma: The defendant may face five years in jail.
- Oregon: The defendant may face up to five years and a $100,000 fine.
- South Carolina: The defendant may face up to five years and at least a $500 fine.
- Texas: The defendant may face two to 10 years in prison and a fine of $10,000.
- Vermont: A sentence of not more than five years of prison can be expected.
As illustrated, depending on the jurisdiction and state legislation, the criminal consequences for bigamy convictions might vary significantly. Under some circumstances, such as if the person has a previous bigamy conviction on their record, the penalty may be raised.
One Illustration of Bigamy
This is a 2017 true-life story about a woman living in California. The wife was unaware that the husband had married her while still legally married to his first wife. His second wife only found out about his first marriage when the man’s new girlfriend began spreading rumors about it. As a result, the woman wanted to know what her rights were when it came to taking legal action against bigamy. She was also curious about the legality of her marriage.
The woman’s marriage was declared null and void because her husband was married to another woman while he was married to her. The second wife was an unwitting victim of bigamy under California law, which means her marriage was never legal or valid in the eyes of the law. While bigamy is illegal in California, it is rarely prosecuted.
Since the marriage was declared null and void, the woman needed to file an annulment immediately. She was a “putative wife” because she attempted to marry in good faith and could thus seek one-half of all property acquired by the couple during the invalid marriage. Furthermore, she was still entitled to spousal support if she required it.
Now that you know all the highlights of remarrying while still married in the United States, you are ready for some final takeaways!
- If you want to remarry but aren’t sure if you’re still legally married to someone else, it’s a good idea to find out before proceeding with the subsequent marriage, or you could face penalties depending on your state.
- To establish whether your first marriage is still in place and you are legally bound to your first spouse, go to the website of the state where you first married.
- Be aware of the legal ramifications. Some states, for example, regard children born or conceived during a bigamous marriage to be legitimate as long as they are born or conceived before the marriage is declared invalid. This has repercussions for inheritance and maintenance obligations for the children.
- The property rights of the spouses may be affected if a marriage is deemed null and void. As in the case from California, if your second spouse was unaware of your first marriage, he or she may be entitled to one-half of your property and spousal support.
Thus, if any person is accused of bigamy, they should hire the service of a criminal defense lawyer, who must defend the person and show evidence of innocence or good faith. If you ever find yourself in a similar situation, you’ll know what to do!
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